Voting rights in America: The Voting Rights Amendment Act of 2014

So long as I do not firmly and irrevocably possess the right to vote I do not possess myself. I cannot make up my mind—it is made up for me. I cannot live as a democratic citizen, observing the laws I have helped to enact—I can only submit to the edict of others.

—Martin Luther King, Jr.

U.S. Senator Patrick J. Leahy (D-VT) quoted Martin Luther King, Jr., when Sen. Leahy introduced the Voting Rights Amendment Act of 2014.1 As a follow-up to the last issue of The Challenge, this article does not take a position on the Voting Rights Amendment but hopes to inform the debate regarding the aftermath of Shelby County, Alabama v. Holder (2013), in which the U.S. Supreme Court found part of the Voting Rights Act of 1965 to be unconstitutional.

The Voting Rights Amendment Act of 2014 seeks to amend the Voting Rights Act of 1965. The legislation is a bipartisan response to the Supreme Court’s concern in Shelby that certain provisions of the Voting Rights Act were not based on current voting conditions. Both proponents and opponents of the post-Shelby Voting Rights Act have criticized the Voting Rights Amendment Act. Some persons believe that the legislation is unnecessary, and some persons believe that the legislation will not adequately protect voting rights.

Sen. Leahy introduced the Voting Rights Amendment Act to the U.S. Senate on January 16, 2014. The legislation is numbered S.1945. As of January 16, 2014, S.1945 had two cosponsors: Sen. Christopher A. Coons (D-DE) and Sen. Richard J. Durbin (D-IL). Congressman F. James Sensenbrenner (R-WI) introduced an identical bill in the U.S. House of Representatives.2 The House bill is numbered H.R.3899. As of January 16, 2014, the House bill had three cosponsors: Rep. Spencer Bachus (R-AL), Rep. Steve Chabot (R-OH) and Rep. John Conyers, Jr., (D-MI). Since then, nineteen members of the House have joined as cosponsors, including two members of the Illinois delegation: Rep. Mike Quigley and Rep. Jan Schakowsky.

S.1945 would amend the Voting Rights Act of 1965 to define the current voting conditions that require a jurisdiction to obtain federal preclearance before implementing changes to voting laws or practices. Pursuant to S.1945, the Voting Rights Act would cover States that had five or more voting rights violations during the previous fifteen calendar years, at least one of which was committed by the State itself. The Act would cover political subdivisions within a state if the political subdivision had three or more voting rights violations during the previous fifteen calendar years. One voting rights violation would be enough to trigger scrutiny of a political subdivision, if the political subdivision had extremely low minority turnout during the previous 15 years. S.1945 describes how the federal government would determine whether a political subdivision has had a persistent, extremely low minority turnout. The bill also defines “minority” as persons who identify themselves as being of Hispanic or Latino origin, of a race other than white, or of two or more races.

Using the current conditions described in S.1945, it appears that certain states covered under the pre-Shelby Voting Rights Act would not be covered under the new legislation, including Alabama, Arizona, Florida, South Carolina and Virginia.3 However, as reported by Sen. Leahy, S.1945 would improve the Voting Rights Act by allowing States or jurisdictions to be “bailed in” for results-based violations, not just intentional voting rights violations as required by the current Voting Rights Act.

Disappointing to some watchdog groups is the legislation’s provision on voter identification laws. S.1945 excludes from violations triggering federal oversight any objection by the Attorney General to voting prerequisites that individuals provide photo identification for voting in federal, state or local elections. Voter identification laws have been enacted in various states, and some states will not count a voter’s ballot unless the voter produces photo identification. Many voting rights advocates expect the 2014 elections to be a test of the effect of voter identification laws. The Associated Press reported in February 2014 that voters in ten states will be required to produce photo identification before voting.4 The states include Alabama, Texas and Virginia. In Texas, some prospective voters will have to travel 200 miles round-trip to obtain proper photo identification for voting, because some Texas counties do not have a satellite office of the government agency that issues the photo identification. The Associated Press also reported that dozens of mail-in ballots for a special election in Arkansas in January 2014 were discarded because voters failed to include a copy of their photo identification. Such reports concern voting rights advocates in Virginia, because the 2013 statewide election for attorney general was decided by 165 votes.5 However, S.1945 includes as violations triggering federal oversight voting prerequisites that a court prevents from being enforced. Sen. Leahy also contends that S.1945 amends the preliminary injunction standard for voting rights cases to respond to the need for immediate, preliminary relief where a plaintiff can establish that a voting measure is likely to be discriminatory.

The Voting Rights Amendment Act of 2014 also seeks transparency in changes to voting laws or practices. As Sen. Leahy told the Senate, the amendment would provide for public notice of changes affecting federal elections. The amendment would also require states and political subdivisions to release information on polling place resources for federal elections. To improve transparency in federal, state and local elections, S.1945 would require public notice of changes in the constituency participating in an election (e.g., changes due to redistricting). Where the constituency has changed, S.1945 would require public notice of the demographic and electoral data in the geographic area subject to the change, including demographic information for the voting age population and the number of registered voters. Smaller jurisdictions, including municipalities with a population of 10,000 or less residents, would not be required to comply with the transparency provisions in S.1945. Finally, S.1945 clarifies that the Attorney General has authority to assign observers to enforce various voting rights, including bilingual election requirements.

Sen. Leahy presented the Voting Rights Amendment Act of 2014 as a bipartisan bill, since it is sponsored by Democrats and Republicans in the House. He encouraged Democrats and Republicans in both houses of Congress to come together as they have in the past to ensure protections that voters have under the Voting Rights Act of 1965. As an example of bipartisanship on voting rights, Sen. Leahy specifically highlighted the 2006 bipartisan reauthorization of the Voting Rights Act, when the vote in the Senate was 98 to 0, and the vote in the House was 390 to 33. As Sen. Leahy suggested in his remarks, the voting matters in S.1945, which address discrimination on the basis of race, color or membership in a language minority group, are important for all Americans, in that the right to vote is fundamental to the principle that we should be able to participate in our democracy. The Act, which is more detailed than described above, has supporters and detractors. However, it is a start in an important debate about the future of the Voting Rights Act and deserves our further consideration. ■